Texas Register February 11, 2022 Volume: 47 Number: 6

Texas Register Table of Contents

1 The Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed two individuals to the Texas Council for Developmental Disabilities.
2 Health and Human Services Commission
3 Texas Board of Nursing
- - 3.0.1 Adopted Rules Re:
    - 3.0.1.1 Amending 22 TAC §223.1 to decrease the examination fee for vocational and registered nurse applicants from $75 to $50.
4 Department of State Health Services
- - 4.0.1 Adopted Rules Re:
  - 4.0.2 Transferred Rules Re:
    - 4.0.2.1 Transferring DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 14, County Indigent Health Care Program to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 363, County Indigent Health Care Program.
    - 4.0.2.2 Transferring DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 39, Primary Health Care Services Program to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 364, Primary Health Care Services Program.

The Governor

Appointments Re:

The Governor appointed two individuals to the Texas Council for Developmental Disabilities.

Appointments for January 31, 2022

Appointed to the Texas Council for Developmental Disabilities, for a term to expire February 1, 2023:

Juan Carlos Lopez of Edinburg, Texas (replacing John W. Thomas of Weatherford, who resigned).

Appointed to the Texas Council for Developmental Disabilities, for a term to expire February 1, 2027:

Meridith L. Silcox of Splendora, Texas (replacing Emmett T. “Toby” Summers, III of San Antonio, whose term expired).

Health and Human Services Commission

Emergency Rules Re:

New 26 TAC §500.4, allowing a currently licensed hospital to participate in the CMS hospitals at home program to expand hospital capacity in response to the COVID-19 pandemic.

CHAPTER 500. COVID-19 EMERGENCY HEALTH CARE FACILITY LICENSING
SUBCHAPTER A. HOSPITALS
26 TAC §500.4

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26 Texas Administrative Code, Chapter 500, COVID-19 Emergency Health Care Facility Licensing, new §500.4, concerning an emergency rule in response to COVID-19 in order to permit a licensed hospital to participate in the Centers for Medicare & Medicaid Services (CMS) Acute Hospital Care at Home Program to expand hospital capacity in response to the COVID-19 pandemic.

HHSC is adopting an emergency rule to temporarily permit a currently licensed hospital to participate in the CMS hospitals at home program to expand hospital capacity in response to the COVID-19 pandemic.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

The purpose of the emergency rulemaking is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for Participating in the Centers for Medicare and Medicaid Services Acute Hospital Care at Home Program During the COVID-19 Pandemic.

New 26 TAC §551.48, requiring Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Condition to track vaccinations of staff and residents.

CHAPTER 551. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS
SUBCHAPTER C. STANDARDS FOR LICENSURE
26 TAC §551.48

OVERVIEW

The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 26, Part 1, Texas Administrative Code, Chapter 551, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions, new §551.48. HHSC is adopting this emergency rule to track vaccinations of staff and residents in long-term care facilities in Texas in response to COVID-19.

HHSC is adopting an emergency rule to require ICF/IID to report COVID-19 vaccinations of staff and individuals in ICF/IID and to require enrollment for the emergency communication system. The purpose of the rule is to describe the requirements related to such reporting and enrollment.

BACKGROUND AND JUSTIFICATION

As authorized by Texas Government Code, §2001.034, HHSC may adopt an emergency rule without prior notice or hearing if it finds that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days’ notice. Emergency rules adopted under Texas Government Code, §2001.034, may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

The purpose of the proposal is to support the Governor’s March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. HHSC accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency rule for ICF/IID COVID-19 Response.

Proposed Rules Re:

Amending 1 TAC §§391.101, 391.103, 391.105, 391.107 to update general provisions related to the purchase of goods and services by the Texas Health and Human Services Commission.

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION
SUBCHAPTER A. GENERAL PROVISIONS
1 TAC §§391.101, 391.103, 391.105, 391.107

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§391.101, concerning Purpose; 391.103, concerning Authority; 391.105, concerning Exceptions; 391.107, concerning Definitions; 391.201, concerning Procurement Methods; 391.203, concerning Spot Purchases; 391.205, concerning Competitive Bidding through Informal Bidding; 391.207, concerning Competitive Sealed Bidding through Invitation for Bids; 391.209, concerning Request for Proposals; 391.211, concerning Request for Qualifications; 391.213, concerning Request for Offers; 391.215, concerning Proprietary Purchases; 391.217, concerning Emergency Purchases; 391.219, concerning Award Notification; 391.241, concerning Contracting and Delivery Procedures for Construction; 391.303, concerning Applicability; 391.309, concerning Contract Awards During Protest; 391.503, concerning Mandatory Review of Historically Underutilized Business Subcontracting Plan; 391.601, concerning Open Enrollment Contracts; and new §391.245, concerning Group Purchasing Organizations Program; and §391.247, concerning Direct Contract Award.

BACKGROUND AND JUSTIFICATION

The proposal is necessary to implement Senate Bill (S.B.) 799 and S.B. 1896, 87th Texas Legislature, Regular Session, 2021. S.B. 799 made changes to laws relating to contracting procedures and requirements for governmental entities, effective September 1, 2021. S.B. 1896 classified the Department of Family and Protective Services (DFPS) as a health and human services agency subject to the procurement authority under Texas Government Code §2155.144, effective June 14, 2021.

This proposal also includes new rules and procedures for the purchase of goods and services made through group purchasing organizations as authorized by Texas Government Code §2155.144 and §2155.1441.

The proposed rules include non-substantive edits and revisions throughout.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §391.101 clarifies the purpose of the rules.
The proposed amendment to §391.103 adds references to the relevant subchapters in the rules for which HHSC is delegated authority, including special contracting methods, protest procedures, contract claim procedures, vendor responsibilities and contract monitoring standards. The amendment also corrects a reference to HHSC.
The proposed amendment to §391.105 clarifies that both state and federal grant awards are excluded from the authority of Chapter 391.
The proposed amendment to §391.107 adds the following new terms used throughout the chapter: DFPS, group purchasing organization, health care program, quote, and TCCO. Affected terms are renumbered accordingly. The following existing terms are amended to more clearly define the terms and to make minor grammatical edits: competitive range, historically underutilized business, notice of intent to award, open enrollment, proposal, and solicitation.

Amending 1 TAC §§391.201, 391.203, 391.205, 391.207, 391.209, 391.211, 391.213, 391.215, 391.217, 391.219 to clarify procurement and contracting methods related to the purchase of goods and services by the Texas Health and Human Services Commission.

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION
SUBCHAPTER B. PROCUREMENT AND SPECIAL CONTRACTING METHODS
DIVISION 1. PROCUREMENT METHODS
1 TAC §§391.201, 391.203, 391.205, 391.207, 391.209, 391.211, 391.213, 391.215, 391.217, 391.219

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules include non-substantive edits and revisions throughout.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §391.201 clarifies that HHSC may acquire goods and services on behalf of the health and human services system and DFPS through the procurement and special contracting methods specified in Subchapter B of the rules, corrects a reference to HHSC, and adds contracting methods authorized by statute as an allowable means of acquiring goods and services. The amendment also corrects a reference to HHSC in subsection (c)(6) and includes minor edits and grammatical revisions for clarity. New paragraph (7) adds direct contract awards to the list of procurement and special contracting methods under subsection (c).
The proposed amendment to §391.203 updates the dollar threshold for spot purchases from $5,000 to $10,000 and deletes a reference to “HHS”.
The proposed amendment to §391.205 updates the dollar threshold for informal bidding from $5,000 to $10,000. Subparagraphs (1)(A), (B) and (F) of the section add “email address” to the list of required contact information for vendors and procurement personnel for informal bid solicitations and responses. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.207 describes the minor irregularities in a bid response that may be waived or corrected. Subparagraph (2)(C) is deleted because the provision is included in amended subparagraph (B). The remaining subparagraphs are renumbered accordingly. Subparagraph (2)(E) is amended to delete a statement regarding the return and compensation of samples to vendors. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.209 corrects references to HHSC and adds references to DFPS. The proposed rule includes clean-up changes by deleting §391.209(4), regarding the evaluation and selection process for a Request for Proposals under Health and Safety Code §12.0121. The remaining paragraphs are renumbered accordingly. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.211 describes the minor irregularities in a response to a Request for Qualifications that may be waived or corrected. The remaining paragraphs are renumbered accordingly. The proposed rule includes clean-up changes by deleting §391.211(2)(C), regarding the evaluation and selection process for a Request for Qualifications under Health and Safety Code §12.0121. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.213 describes the minor irregularities in a response to a Request for Offers that may be waived or corrected. The remaining paragraphs are renumbered accordingly. Paragraph (3), regarding evaluation and selection, is renumbered and corrects a reference to HHSC. Paragraph (4), regarding negotiations, is renumbered and adds references to DFPS. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.215 updates the dollar threshold for proprietary purchases from $5,000 to $10,000. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.217 updates the dollar threshold for emergency purchases from $5,000 to $10,000. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.219 clarifies that contracts will be awarded that provide the best value to the state.

Amending 1 TAC §§391.241 to add Request for Qualifications as a procurement method used for construction and construction related services and include minor revisions to provisions relating to special contracting methods.

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION
SUBCHAPTER B. PROCUREMENT AND SPECIAL CONTRACTING METHODS
DIVISION 2. SPECIAL CONTRACTING METHODS
1 TAC §§391.241

OVERVIEW

The proposed amendment to §391.241 adds a reference to Chapter 2254 of the Texas Government Code and adds Request for Qualifications as a procurement method used for construction and construction related services. Paragraph (1) under subsection (c) is deleted regarding oral presentations or interviews. The remaining paragraphs are renumbered accordingly. Other amendments include minor edits and grammatical revisions for clarity and consistency.

BACKGROUND AND JUSTIFICATION

The proposed rules include non-substantive edits and revisions throughout.

New 1 TAC §§391.245, 391.247, establishing new procurement and contracting rules for certain purchases of goods and services by the Texas Health and Human Services Commission.

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules include non-substantive edits and revisions throughout.

SECTION-BY-SECTION SUMMARY

Proposed new §391.245 establishes procurement and contracting rules for purchases made in connection with group purchasing organizations in accordance with Texas Government Code §2155.144 and §2155.1441.
Proposed new §391.247 establishes direct contract award rules and procedures for certain contracts that are not subject to competitive advertising and evaluation requirements for the HHSC Office of Inspector General, HHSC state hospitals and state supported living centers, and professional services of physicians, optometrists and registered nurses.

Amending 1 TAC §391.303, §391.309 to clarify that purchases made through group purchasing organizations and direct contract awards are excluded from the authority of Subchapter C, regarding Protests.

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION
SUBCHAPTER C. PROTESTS
1 TAC §391.303, §391.309

OVERVIEW

BACKGROUND AND JUSTIFICATION

The proposed rules include non-substantive edits and revisions throughout.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §391.303 clarifies that purchases made through group purchasing organizations and direct contract awards are excluded from the authority of Subchapter C, regarding Protests. Other amendments include minor edits and grammatical revisions for clarity and consistency.
The proposed amendment to §391.309 includes minor grammatical edits for clarity and consistency.

Amending 1 TAC §391.503 to provide minor edits to requirements concerning Mandatory Review of Historically Underutilized Business Subcontracting Plans.

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION
SUBCHAPTER E. HISTORICALLY UNDERUTILIZED BUSINESSES
1 TAC §391.503

OVERVIEW

The proposed amendment to §391.503 includes minor grammatical edits for clarity and consistency.

BACKGROUND AND JUSTIFICATION

The proposed rules include non-substantive edits and revisions throughout.

Amending 1 TAC §391.601 to add a reference to DFPS.

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION
SUBCHAPTER F. CONTRACTS
1 TAC §391.601

OVERVIEW

The proposed amendment to §391.601 adds a reference to DFPS. Other amendments include minor grammatical edits for clarity and consistency.

BACKGROUND AND JUSTIFICATION

The proposed rules include non-substantive edits and revisions throughout.

Transferred Rules Re:

Transferring DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 14, County Indigent Health Care Program to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 363, County Indigent Health Care Program.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, certain functions previously performed by the Department of State Health Services (DSHS), including client services, certain regulatory functions, and the operation of state hospitals, transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. The DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 14, County Indigent Health Care Program, that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 363, County Indigent Health Care Program.

The rules will be transferred in the Texas Administrative Code effective March 1, 2022.

Transferring DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 39, Primary Health Care Services Program to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 364, Primary Health Care Services Program.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, certain functions previously performed by the Department of State Health Services (DSHS), including client services, certain regulatory functions, and the operation of state hospitals, transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. The DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 39, Primary Health Care Services Program, that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 364, Primary Health Care Services Program.

The rules will be transferred in the Texas Administrative Code effective March 1, 2022.

In Addition Re:

Public Notice – Medically Dependent Children Waiver, Proposed Renewal Date September 1, 2022

OVERVIEW

The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to renew the Medically Dependent Children Program (MDCP) waiver authorized under §1915(c) of the Social Security Act. CMS has approved the MDCP waiver application through August 31, 2022. The proposed effective date for the renewal is September 1, 2022. Once approved the renewal will be effective for another five year period until August 31, 2027.

RENEWAL REQUEST DETAILS

This renewal request proposes to make the following changes:

Appendix A: Waiver Administration and Operation
- HHSC updated the points of contact for provider inquiries and complaints to include the Health and Human Services Commission (HHSC) Managed Care Compliance and Operations Research and Resolution mailbox and a clarification that concerns and requests for assistance are also received via the MDCP/DBMD Escalation Helpline.
- HHSC updated the entities responsible for conducting utilization management as both the “contracted entity” and “Medicaid Agency.”
- HHSC added the following new administrative authority measures: A.a.1 “Number and percent of STAR Kids and STAR Health contracts approved by HHSC that are implemented by the MCOs.
- A.a.2 “Number and percent of STAR Kids and STAR Health contracts that were monitored through an operational review to verify contract compliance.”
- A.a.3 “Number and percent of individuals on the STAR Health and STAR Kids MDCP interest list who are offered waiver services on a first-come, first-served basis by HHSC.”

Appendix B: Participant Access and Eligibility
- HHSC clarified the cost ceiling in the waiver program to indicate “50 percent of the institutional average.” HHSC removed language indicating it was “as of August 31, 2010.”
- HHSC revised the following performance measures:
- B.a.1 to, “Number and percent of applicants accepting an offer to participate, had reasonable indication services may be needed, and received a level of care (LOC) evaluation.”
- B.c.1 to, “Number and percent of new enrollees with initial LOCs completed prior to receipt of first service using approved processes and instruments.”
- HHSC removed performance measure B.b.1 “Number and percent of individuals who received a level of care assessment at least annually,” based on recommendations from CMS.

Appendix C: Participant Services
- HHSC clarified that two unannounced inspections are required per two-year licensing period of each institution licensed under Health and Safety Code Chapter 242.
- HHSC deleted information about service provider qualifications for the respite service component because it duplicates similar information in the same section.
- HHSC clarified language in the “limit on the amount, frequency, or duration of the service,” of supported employment to clarify that, in the state of Texas, supported employment (as defined in the waiver) is not available to individuals under a program funded under section 110 of the Rehabilitation Act of 1973.
- HHSC clarified that for employment assistance, documentation should be maintained in the individuals record including documentation that the service is not available to the individual under a program funded under section 110 of the Rehabilitation Act of 1973 or under the Individuals with Disabilities Education Act.
- HHSC clarified the training requirements for financial management services agencies (FMSAs).
- HHSC clarified that the Home and Community Support Services Agency ensures training of personnel for supported employment.

Appendix D: Service Delivery
- HHSC deleted information about the entities responsible for developing the service plan because it duplicates similar information in the same section.
- HHSC clarified that a fair hearing should be requested after the MCO Internal Appeal is requested.
- HHSC clarified that HHSC delineates the roles and responsibilities of HHSC and its contractors via its contracts.
- HHSC clarified that the MCO ensures authorized services are delivered as indicated in the service plan.
- For the performance measures reported by utilization review (D.a.1, D.a.2, and D.a.3, D.d.2, D.e.2, and D.e.3), HHSC removed the check box for quarterly collection of data from these measures, as data will be collected annually.
- For Performance Measures D.c.1 and D.e.1, HHSC changed the data source to the Quality Assurance and Improvement Data Mart.

Appendix E: Participant Direction of Services
- HHSC deleted information about the traditional agency option because it duplicates similar information in the same section.
- HHSC clarified the services available through the consumer directed services (CDS) option.
- HHSC clarified that the FMSA conducts orientation and ongoing training to participate in the CDS option.
- HHSC clarified that Members must exhaust the MCO Internal Appeal process prior to requesting an External Medical Review (EMR) or fair hearing. HHSC also clarified that the procedures for requesting an MCO Internal Appeal, EMR, and fair hearing are located in Appendix F.

Appendix F: Participant Rights
- HHSC clarified that written notice of an adverse action is mailed at least 10 business days before the date the action is to take effect.
- HHSC clarified that an “authorized representative” and “legally authorized representative” are also a participant in the notice of action and fair hearing process.
- HHSC clarified that a Member must withdraw their fair hearing request if they do not want to continue, regardless of the EMR decision. HHSC also clarified that the Independent Review Organization’s attendance at the fair hearing may be requested.
- HHSC clarified the contents of a written notice of action and the right to a fair hearing.
- HHSC clarified the review process for MCO Internal Appeals.
- HHSC removed the statement, “The Member is informed at enrollment that filing a complaint is not a pre-requisite or substitute for requesting an HHSC fair hearing,” because a Member must first file an MCO appeal before requesting a fair hearing.
- HHSC provided information about the escalation help line that was established for the STAR Kids managed care program.

Appendix G: Health and Welfare
- HHSC clarified that the “Department of Family and Protective Services (DFPS) Statewide Intake,” instead of “DFPS,” receives reports of allegations of abuse, neglect, and exploitation (ANE) for investigation by HHSC Provider Investigations.
- HHSC clarified what HHSC Provider Investigations and DFPS investigate.
- HHSC clarified that the MCO must provide the numbers for HHSC and DFPS Statewide Intake for reporting allegations of ANE. HHSC also updated the entities who are to be contacted to be consistent with current policy.
- HHSC revised the Responsibility for Review of and Response to Critical Events or Incidents section.
- HHSC deleted duplicative information given to Members about filing complaints because it duplicates similar information in another section.
- HHSC added that the MDCP/DBMD Escalation Line may be contacted for filing complaints related to the provision of MDCP services.
- HHSC clarified that medication errors may be reported if the medication was not administered.
- HHSC changed the data source for the following performance measures G.a.1, G.a.2, G.a.3, G.a.4, G.a.5, to the Quality Assurance and Improvement Data Mart and for measures G.a.7, G.a.8, G.c.1, and G.c.2 to TexConnect Portal.
- For G.a.5, the MCO was removed from the responsible party for data collection since this information will be captured through DFPS.
- HHSC created a new measure, G.a.9 “Number and percent of ANE incidents reported by the provider within the specified timeframe.”
- HHSC changed measure, G.b.1 to “Number and percent of provider-reported critical incidents for which the providers took action as necessary to protect the health and safety of the individual.”
- HHSC created a new measure, G.b.2, “Number and percent of complaints addressed according to HHSC policies and procedures.”
- HHSC clarified in G.c.1, “unauthorized” restraints.”
- HHSC changed measure, G.d.1 to, “Number and percent of MCOs who meet or exceed HHSC minimum standards on 2/3 or more of the STAR Kids Performance Indicator Dashboard measures.”

Appendix H: Quality Improvement Strategy
- HHSC provided information about the role of the STAR Kids Managed Care Advisory Committee.

Appendix I: Financial Accountability
- HHSC deleted information about the external audit vendors because it duplicates similar information in the same section.
- HHSC updated the (EVV) language around the timeline for implementation.
- HHSC changed the term “Medicaid/CHIP Division Finance” to “Provider Finance Department” to reflect the accurate name of the program area.

Miscellaneous
- HHSC decreased the unduplicated participants, point-in-time, and reserve capacity numbers, for all five waiver years based on current utilization trends, attrition rates and available funding in Appendices B and J.
- HHSC updated the service projections, projections for CDS participants, and projections for annual average per capita Medicaid costs for all non-waiver institutional services (Factor G) and other Medicaid costs for the institutional population (Factor G’) for all five waiver years in Appendices B, E, and J.
- HHSC clarified that MDCP Members have the right to request an external medical review (EMR) for an MCO service denial at the same time as the fair hearing. HHSC also clarified who can request an EMR, and that the EMR must be requested at the same time as the fair hearing.
- HHSC updated references in Texas Administrative Code Title 40 to the appropriate provisions in Title 26. Rules of the former Department of Aging and Disability Services, which were in Title 40, are being transferred to Title 26.
- HHSC updated language regarding the managed care quality strategy.
- HHSC used the term “service provider” instead of “provider” and the term “provider agency” instead of “program provider” where appropriate.
- HHSC used the term “HHSC Long-Term Care Regulation” instead of “DADS Regulatory” to reflect the current name of the HHSC program area.
- HHSC used the term “service plan” instead of “individual service plan” to reflect the accurate terminology.
- The MDCP waiver provides home and community-based services to medically fragile individuals from birth through age 20 who, without the waiver, would require institutionalization in a nursing facility. Services in the MDCP waiver include respite, adaptive aids, minor home modifications, employment assistance, supported employment, financial management services, transition assistance services, and flexible family support services. Texas uses the MDCP waiver to provide services to Texans in the least restrictive environment possible. These environments include the individual’s or a family member’s home, or a Child Protective Services foster care home which can meet the individual’s complex medical needs.

Texas Board of Nursing

Adopted Rules Re:

Amending 22 TAC §223.1 to decrease the examination fee for vocational and registered nurse applicants from $75 to $50.

CHAPTER 223. FEES
22 TAC §223.1

OVERVIEW

The Texas Board of Nursing (Board) adopts amendments to §223.1, relating to Fees, without changes to the proposed text published in the December 24, 2021, issue of the Texas Register (46 TexReg 8879) and will not be republished.

Adopted §223.1(a)(1) decreases the examination fee for vocational and registered nurse applicants from $75 to $50.

BACKGROUND AND JUSTIFICATION

The amendments are adopted under the authority of the Occupations Code §301.151 and §301.155. The General Appropriations Act, 87th Regular Legislative Session, passed a budget for the Board for the 2022 – 2023 biennium. Specifically, in Article VIII, Section 2, it limits the Board appropriation to revenue collections. The Board anticipates a revenue surplus for the 2022 – 2023 biennium. The adopted reduction in fees is necessary to limit revenue collection to align with the budgetary requirements of the legislature.

Department of State Health Services

Adopted Rules Re:

Repealing and replacing 25 TAC §§157.122, 157.132, 157.133 to update content and processes related to emergency medical services trauma systems.

CHAPTER 157. EMERGENCY MEDICAL CARE
SUBCHAPTER G. EMERGENCY MEDICAL SERVICES TRAUMA SYSTEMS
25 TAC §§157.122, 157.132, 157.133

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts the repeal of §157.132, concerning the Regional Trauma Account; the repeal and replace with the new §157.122, concerning Trauma Service Areas; and the repeal and replace with new §157.133, concerning Requirements for Stroke Facility Designation. New §157.133 is adopted with changes to the proposed text as published in the September 24, 2021, issue of the Texas Register (46 TexReg 6360). The repeal of §157.132, repeal and new §157.122 and the repeal of §157.133 are adopted without changes and will not be republished.

BACKGROUND AND JUSTIFICATION

The rules update the content and processes with the advances and practices that have developed since these rules were last revised. The repeal and new §157.122, Trauma Service Areas (TSAs), updates the geographic alignment of a TSA and the process for realignment of a county to a TSA.

House Bill (H.B.) 7, 84th Legislature, Regular Session, 2015, removed the funds from regional trauma account No. 5137 and reallocated the funds to the designated trauma facility and emergency medical services (EMS) account No. 5111. The repeal of §157.132 removes the regional trauma account in order to align with the legislative direction of H.B. 7.

The repeal and new §157.133 aligns the Texas stroke systems with national stroke standards. Per Texas Health and Safety Code §773.204, the Governor’s EMS and Trauma Advisory Council Stroke Committee shall consult on the criteria for stroke facilities established by national medical organizations, such as The Joint Commission, in developing the stroke emergency transport plan and stroke facility criteria. The extensive revisions to the rule text and reorganization of the subsections necessitate repeal and replacement, rather than an amendment to this section.

Amending 25 TAC §448.401 to provide updated facility licensure information.

CHAPTER 448. STANDARD OF CARE
SUBCHAPTER D. FACILITY LICENSURE INFORMATION
25 TAC §448.401

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §448.401, concerning License Required; §448.801, concerning Screening; §448.803, concerning Assessment; and §448.911, concerning Treatment Services Provided by Electronic Means.

Amended §§448.401, 448.801, 448.803 and 448.911 are adopted with changes to the proposed text as published in the October 8, 2021, issue of the Texas Register (46 Tex Reg 6875). These rules will be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to comply with House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, which requires HHSC to adopt rules to permit a licensed chemical dependency treatment facility (CDTF) to provide outpatient treatment services to adult and adolescent clients using telecommunications or information technology. H.B. 4 also requires HHSC to adopt rules relating to the minimum standards for CDTFs to provide intakes, screenings, and assessments using telecommunications or information technology.

The amendments are also necessary to implement H.B. 4298, 86th Legislature, Regular Session, 2019, which exempted a satellite office or location operating under the supervision of a licensed outpatient CDTF and providing services within the scope of the outpatient CDTF’s license from the requirement to obtain a CDTF license under Texas Health and Safety Code Chapter 464.

The amendments are also necessary to ensure consistency with Texas Health and Safety Code §464.003 by updating the rule language to align with current statute. Senate Bill (S.B.) 219, 84th Legislature, Regular Session, 2015, and S.B. 1314, 85th Legislature, Regular Session, 2017, made non-substantive amendments to §464.003 to update the references for juvenile justice facilities and programs and licensed acute care facilities already exempt from licensure and to use person-first language.

Amending 25 TAC §§448.801, 448.803 to update screening and assessment requirements.

CHAPTER 448. STANDARD OF CARE
SUBCHAPTER H. SCREENING AND ASSESSMENT
25 TAC §§448.801, 448.803

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 25 TAC §448.911 to update requirements for providing treatment services via electronic means.

CHAPTER 448. STANDARD OF CARE
SUBCHAPTER I. TREATMENT PROGRAM SERVICES
25 TAC §448.911

OVERVIEW

BACKGROUND AND JUSTIFICATION

Transferred Rules Re:

Transferring DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 14, County Indigent Health Care Program to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 363, County Indigent Health Care Program.

OVERVIEW

The rules will be transferred in the Texas Administrative Code effective March 1, 2022.

Transferring DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 39, Primary Health Care Services Program to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 364, Primary Health Care Services Program.

OVERVIEW

During the 84th Legislative Session, the Texas Legislature passed Senate Bill 200, addressing the reorganization of health and human services delivery in Texas. As a result, certain functions previously performed by the Department of State Health Services (DSHS), including client services, certain regulatory functions, and the operation of state hospitals, transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code, §531.0201 and §531.02011. The DSHS rules in Texas Administrative Code, Title 25, Part 1, Chapter 39, Primary Health Care Services Program, that are related to these transferred functions, are being transferred to HHSC under Texas Administrative Code, Title 26, Part 1, Chapter 364, Primary Health Care Services Program.

The rules will be transferred in the Texas Administrative Code effective March 1, 2022.